HSB 531 (LSB 5287DP (5) 85)

SENATE/HOUSE FILE _____

BY  (PROPOSED STATE PUBLIC DEFENDER BILL)

A BILL FOR

An Act relating to payments from the indigent defense fund by the state public defender, and providing penalties.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 13B.4, subsection 4, paragraph d, Code 2014, is amended by striking the paragraph.
    Sec. 2.  Section 13B.4, subsection 8, Code 2014, is amended to read as follows:
   8.  The state public defender shall adopt rules, as necessary, pursuant to chapter 17A to interpret and administer this chapter, and chapter 815, and sections 229A.6, 232.11, 232.89, 232.113, 232.126, 232.141, 232.179, 600A.6A, 600A.6B, 814.11, and 908.2A.  The state public defender shall have the discretion to interpret such rules.
    Sec. 3.  NEW SECTION.  13B.4A  Judicial review of agency action.
   1.  Notwithstanding chapter 17A, a claimant for payment of indigent defense costs may seek judicial review of the state public defender’s final agency action denying or reducing any claim by filing a motion for judicial review in the court with jurisdiction over the original appointment. This section is the sole and exclusive method of seeking judicial review of the state public defender’s action on any claim for payment.
   a.  A claimant may only file the motion after the state public defender has taken final agency action, as defined by the state public defender, on the claim, and the claimant must file the motion within twenty days of the date that the state public defender provides notice of the final agency action to the claimant.
   b.  Failure to seek judicial review within twenty days of the date that the state public defender provides notice to the claimant of final agency action as defined by the state public defender shall preclude any judicial review of the action taken by the state public defender.
   c.  The motion must clearly and concisely set forth the grounds for error and any other grounds the claimant intends to rely upon when challenging the action of the state public defender.
   2.  a.  The court shall set the motion for hearing and provide the state public defender with at least ten days’ notice of the hearing. The state public defender shall not be required to file a resistance to the motion for judicial review.
   b.  The claimant or state public defender may participate in the hearing by telephone. If the state public defender participates by telephone, the state public defender shall be responsible for initiating the telephone call and paying all telephone charges incurred for the hearing.
   3.  The claimant shall have the burden to show by a preponderance of the evidence any of the following, otherwise the action of the state public defender shall be affirmed:
   a.  The action of the state public defender violates the Constitution of the United States or the Constitution of the State of Iowa, a statute, or an administrative rule adopted by the state public defender.
   b.  The action of the state public defender is arbitrary, capricious, or an abuse of discretion.
   4.  In a hearing on a motion for judicial review of an action of the state public defender the following shall apply:
   a.  The state public defender’s interpretation of the rules adopted by the state public defender or a statute, which the state public defender is vested with discretion to interpret pursuant to section 13B.4, subsection 8, is binding on the court unless the interpretation is irrational, illogical, or a wholly unjustifiable interpretation of the law.
   b.  Factual findings of the state public defender must be accepted by the court unless not supported by substantial evidence.
   c.  If the state public defender provides an administrative procedure for review of an action on a claim, the court shall not consider any grounds for error or any other grounds unless raised with the state public defender prior to the final agency action, and the court shall not admit new evidence that was not presented to the state public defender prior to the final agency action.
   5.  If the state public defender is not first notified and given an opportunity to be heard, any court order entered after the state public defender has taken action on the claim, which affects the claim, is void.
   6.  The decision of the court following a hearing on a motion for judicial review is a final judgment appealable by either the claimant or state public defender.
    Sec. 4.  Section 13B.4B, subsection 2, paragraphs c and d, Code 2014, are amended to read as follows:
   c.  The state public defender may in the state public defender’s sole discretion release claims and supporting documents, including any information that would otherwise be confidential in sections 232.147 through 232.150, to the auditor of state, the Iowa supreme court attorney disciplinary board, the grievance commission of the supreme court of Iowa, or to other state or local agencies to the extent necessary to investigate fraud or other criminal activity against the attorney or vendor submitting the claim.
   d.  The state public defender may release the claim and supporting documents to the court with respect to a hearing held under section 13B.4, subsection 4, paragraph “d” 13B.4A.
    Sec. 5.  Section 232.151, Code 2014, is amended to read as follows:
   232.151  Criminal penalties.

   Any person who knowingly discloses, receives, or makes use or permits the use of information derived directly or indirectly from the records concerning a child referred to in sections 232.147 to through 232.150, except as provided by those sections or section 13B.4B, subsection 2, paragraph “c”, shall be guilty of a serious misdemeanor.
    Sec. 6.  Section 600A.6B, Code 2014, is amended to read as follows:
   600A.6B  Payment of attorney fees.
   1.  A person filing a petition for termination of parental rights under this chapter or the person on whose behalf the petition is filed shall be responsible for the payment of reasonable attorney fees for services provided by counsel appointed pursuant to section 600A.6A in juvenile court or in an appellate proceeding initiated by the person filing the petition unless the person filing the petition is a private child-placing agency as defined in section 238.1 licensed under chapter 238 or unless the court determines that the person filing the petition or the person on whose behalf the petition is filed is indigent.
   2.  If the person filing the petition is a private child-placing agency as defined in section 238.1 licensed under chapter 238 or if the person filing the petition or the person on whose behalf the petition is filed is indigent, the appointed attorney shall be paid reasonable attorney fees prospective parent on whose behalf the petition is filed shall be responsible for the payment of reasonable attorney fees for services provided in juvenile court or an appellate proceeding as determined by the state public defender for counsel appointed pursuant to section 600A.6A unless the court determines that the prospective parent on whose behalf the petition is filed is indigent.
   3.  If the prospective parent on whose behalf the petition is filed is indigent, and if the person filing the petition is indigent or a private child-placing agency licensed under chapter 238, the appointed counsel shall be paid reasonable attorney fees as determined by the state public defender from the indigent defense fund established in section 815.11.
   3.  4.  If the parent against whom the petition is filed appeals a termination order under section 600A.9, subsection 1, paragraph “b”, the person who filed the petition or the person on whose behalf the petition is filed shall not be responsible for the payment of attorney fees for services provided by counsel appointed pursuant to section 600A.6A in the appellate proceeding. Instead, the appointed attorney shall be paid reasonable attorney fees as determined by the state public defender from the indigent defense fund established pursuant to section 815.11.
   4.  5.  The state public defender shall review all the claims submitted under this section subsection 3 or 4 and shall have the same authority with regard to the payment of these claims as the state public defender has with regard to claims submitted under chapters 13B and 815, including the authority to adopt rules concerning the review and payment of claims submitted.
    Sec. 7.  NEW SECTION.  815.1  Costs incurred by a privately retained attorney representing an indigent person.
   1.  The court shall not authorize the payment of state funds for the costs incurred in the legal representation of a person represented by a privately retained attorney unless the requirements of this section are satisfied.
   2.  An application for the payment of state funds for the costs incurred in the legal representation of an indigent person that is submitted by the privately retained attorney shall be submitted in camera to the court in the county in which the case was filed and include the following:
   a.  A copy of the attorney’s fee agreement for the representation.
   b.  An itemized accounting of all compensation paid to the attorney including the amount of any retainer.
   c.  The amount of compensation earned by the attorney.
   d.  Information on any expected additional costs to be paid or owed by the represented person to the attorney for the representation.
   e.  A signed financial affidavit completed by the represented person.
   3.  The attorney shall submit a copy of the application and all attached documents to the state public defender.
   4.  The court shall not grant the application and authorize all or a portion of the payment to be made from state funds unless the court determines, after reviewing the application and supporting documents, that all of the following apply:
   a.  The represented person is indigent and unable to pay for the costs sought to be paid by the attorney.
   b.  The costs are reasonable and necessary for the representation of the person in a case for which counsel could have been appointed under section 815.10.
   c.  The moneys paid or to be paid to the attorney by or on behalf of the represented person are insufficient to pay all or a portion of the costs sought to be paid from state funds.
   (1)  In determining whether the moneys paid or to be paid to the attorney are insufficient for purposes of this paragraph “c”, the court shall add the hours previously worked to the hours expected to be worked to finish the case and multiply that sum by the hourly rate of compensation specified under section 815.7.
   (2)  If the product calculated in subparagraph (1) is greater than the moneys paid or to be paid to the attorney by or on behalf of the represented person, the moneys shall be considered insufficient to pay all or a portion of the costs sought to be paid from state funds.
   (3)  If the private attorney is retained on a flat fee agreement, and a precise record of hours worked is not available, the privately retained attorney shall provide the court a reasonable estimate of the time expended to allow the court to make the calculation pursuant to this paragraph “c”.
   5.  This section applies to payments to witnesses under section 815.4, evaluators, investigators, and certified shorthand reporters, and for other costs incurred in the legal representation.
   6.  This section shall not be construed to restrict payment of costs on behalf of an indigent person represented on a pro bono basis.
EXPLANATION
The inclusion of this explanation does not constitute agreement with

the explanation’s substance by the members of the general assembly.
   This bill relates to payments from the indigent defense fund by the state public defender.
   The bill specifies the state public defender may adopt rules to interpret and administer Code sections 229A.6 (sexually violent predators), 232.11 (juvenile delinquency), 232.89 (child in need of assistance), 232.113 (termination of parental rights in juvenile court), 232.126 (appointment of guardian ad litem for family in need of assistance), 232.141 (juvenile court expenses and costs), 232.179 (appointment of counsel and guardian ad litem for voluntary foster care placement), 600A.6A (termination of parental rights), 600A.6B (payment of attorney fees for termination of parental rights), 814.11 (indigent’s right to counsel), and 908.2A (appointment of an attorney for violations of probation or parole).
   The bill strikes the current provisions for judicial review of an indigent fee claim in Code section 13B.4(4)(d) and replaces this provision with new Code section 13B.4A. Under the bill, an indigent defense claimant may seek judicial review of the final agency action of the state public defender denying or reducing an indigent defense claim by filing a motion for judicial review in the court with jurisdiction over the original court appointment.
   The bill requires the motion to be filed within 20 days of the date that the state public defender provides notice of the final agency action to the claimant. The bill also requires the motion to clearly and concisely set forth the grounds for error the claimant intends to rely upon when challenging the final agency action of the state public defender. Under the bill, failure to seek judicial review within 20 days of the notice provided by the state public defender precludes any judicial review of the action taken by the state public defender.
   The bill requires the motion to be set for a hearing and that the state public defender be provided at least 10 days’ notice of the hearing. The bill does not require the state public defender to file a resistance to the motion. The claimant or state public defender may appear at the hearing by telephone, however, if the state public defender appears by telephone, the state public defender shall be responsible for initiating and paying all telephone charges incurred during the hearing.
   The bill specifies that if the state public defender is not first notified and given an opportunity to be heard on a motion to review a claim for payment, any court order entered after the state public defender has taken action on the claim, which affects the claim, is void.
   The bill requires the claimant to prove by a preponderance of the evidence that the final agency action of the state public defender violated the constitutions of the United States or the State of Iowa, a statute, or an administrative rule, or that the final agency action was arbitrary, capricious, or an abuse of discretion.
   Under the bill, if the state public defender provides an administrative procedure for review of an action on a claim, the court, during judicial review, shall not consider any grounds for error unless raised with the state public defender prior to the final agency action, and the court is prohibited from admitting new evidence that was not previously presented to the state public defender.
   The bill also allows the state public defender to provide indigent defense claims and supporting documents relating to confidential juvenile records to the auditor of state, the Iowa supreme court attorney disciplinary board, or grievance commission, or to other state or local agencies for the purpose of investigating fraud or criminal activity. Current law allows the release of indigent defense claims and supporting documents for the purpose of investigating fraud or criminal activity but does not specifically allow for the release of confidential juvenile records for the purpose of investigating fraud or other criminal activity.
   The bill makes it a serious misdemeanor for a person to knowingly disclose confidential juvenile information relating to an indigent defense claim except as provided in Code section 13B.4B(2)(c). Current law allows disclosure of confidential juvenile information under Code sections 232.147 through 232.150.
   The bill provides that a child-placing agency licensed under Code chapter 238 may file a petition to terminate parental rights under Code chapter 600A. Current law specifies a child-placing agency as defined in Code section 238.1 may file such a petition.
   The bill specifies that if a person filing a petition to terminate parental rights under Code chapter 600A is a child-placing agency licensed under Code chapter 238 or if the person filing the petition is indigent, the prospective parent on whose behalf the petition is filed shall be responsible for the payment of reasonable attorney fees in the case, unless the court determines the prospective parent on whose behalf the petition is filed is indigent.
   If a prospective parent on whose behalf a petition is filed is indigent, and if the person filing the petition is indigent or a child-placing agency licensed under Code chapter 238 files the petition, the bill requires the appointed attorney in the case to be paid reasonable attorney fees as determined by the state public defender from the indigent defense fund established in Code section 815.11.
   The bill establishes a process for payment of state funds to a privately retained attorney for the costs incurred in the legal representation of a person who is later determined to be indigent.
   Under the bill, the privately retained attorney shall submit an application for the payment of state funds in camera with the court in the county in which the case was filed. The bill requires the application to include a copy of the attorney’s fee agreement, an itemized accounting of all compensation paid to the attorney including the amount of any retainer, information on any expected additional expense paid or owed to the attorney in the case, and a signed financial affidavit completed by the represented person.
   The bill requires a copy of the application to be submitted to the state public defender.
   The bill prohibits the payment of state funds to a privately retained attorney unless the court determines that the represented person is indigent and unable to pay for the expenses sought to be paid by the attorney, the expense of the attorney is reasonable and necessary for the representation of an indigent person for which counsel could have been appointed, and the moneys paid or to be paid by or on behalf of the represented person to the private attorney are insufficient to pay all or a portion of the expenses sought to be paid from state funds. In determining whether the moneys paid or to be paid to the attorney are insufficient, the bill requires the court to add the hours previously worked to the hours expected to be worked to finish the case and to multiply that sum by the hourly rate of compensation specified under Code section 815.7. If this calculation is greater than the moneys paid or to be paid by or on behalf of the represented person to the attorney, the bill specifies the moneys shall be considered insufficient to pay all or a portion of the expenses sought to be paid from state funds, and the court may authorize the payment of state funds to the extent the moneys paid or to be paid to the attorney are insufficient to pay the expenses as calculated by the court. If the private attorney is retained on a flat fee agreement, and a precise record of hours worked is not available, the bill requires the privately retained attorney to provide the court a reasonable estimate of the time expended to allow the court to determine whether state funds must be paid to the privately retained attorney.
   This process of the payment of state funds established in the bill also applies to payments to witnesses, evaluators, investigators, and certified shorthand reporters, and for other costs incurred in the legal representation. However, nothing in the bill is to be construed to restrict payment of expenses from state funds on behalf on an indigent person represented by an attorney on a pro bono basis.